Cutcheon v. Buchanan

• Decision Date: 21 December 1891
• Citation: 50 N.W. 756,88 Mich. 594
• Court: Michigan Supreme Court
• Parties: CUTCHEON et al. v. BUCHANAN et al.

50 N.W. 756

88 Mich. 594

CUTCHEON et al. v. BUCHANAN et al.

Supreme Court of Michigan

December 21, 1891

Appeal from circuit court, Kent county, in chancery; WILLIAM E GROVE, Judge.

Bill in aid of execution by Lewis M. Cutcheon and others against Augustus Buchanan and others. The bill was dismissed, and complainants appeal. Reversed.

Tatem & Quinsey, (Francis A Stace, of counsel,) for appellants.

J M. Jamison and D. E. Corbitt, for appellees.

GRANT J.

The bill in this case is filed in aid of two executions issued upon two judgments recovered by complainants against the defendants Augustus and John L. Buchanan and Mizner, November 9, 1887. The levy was made upon certain personal property and the real estate here in controversy. Upon the making of this levy defendant Corbitt sued defendant Cutcheon in trover for the personal property. The trial in that suit resulted in verdict and judgment for Cutcheon, upon the ground that the transfer by the Buchanans and Mizner to Corbitt was fraudulent as to creditors. This judgment, on appeal to this court, was affirmed. Corbitt v. Cutcheon, 79 Mich 41, 44 N.W. 163. The bill of sale then executed by them to Corbitt contained no reference to any real estate, and no other instrument than this bill of sale was ever executed by them to Corbitt. No right, title, or interest, therefore, to any real estate, passed by this transaction to Corbitt. At the time of this sale the Buchanans and Mizner were in possession of this land under a land contract upon which they had made a payment of $50. Subsequently, but prior to the complainants' judgments, Corbitt paid the amount due upon this contract,-something over $800,-and took the title in his own name. Complainants claim that Corbitt made these payments out of the proceeds of the sales of the personal property of the Buchanans and Mizner, and that this was done for the purpose of defrauding their creditors. While this land contract was not included, in express terms, in the bill of sale, yet it was turned over at the same time by Buchanan and Mizner to Corbitt, and was a part of that transaction, whereby they conveyed to Corbitt all their property. The court below found no evidence of any fraud practiced or intended to be practiced by Buchanan and Mizner on Corbitt, but that the sale was made in good faith, for the purpose of paying their creditors, and saving something out of the property for Buchanan and Mizner. The fraud covered by the statute is that practiced upon creditors, not upon the assignee or grantee of the debtor. It has been repeatedly held by this court that actual fraud need not be intended in order to render such conveyance void. How. St. � 6203 ^[1] and authorities there cited. It is sufficient if the conveyance operate to delay, hinder, or defraud creditors. I think the present case comes within that rule, and therefore find no reason for...